Aroha Mead, August 2003
The Case for Sui Generis Protection for Maori Cultural
& Intellectual Property
Aroha Te Pareake MeadVictoria School of Management
Call of the Earth Llamado de la Tierra
Aroha Mead, August 2003
Kaupapa: Vision
To provide the maximum level of protection of Maori cultural heritage for future generations while ensuring increased opportunities for Maori economic development utilising cultural resources
Aroha Mead, August 2003
Values
Active protection of cultural heritage
Promote cultural transmission Ensure cultural & economic
development Recognise Maori Self-
Determination
Aroha Mead, August 2003
Framework
Protect Maori cultural heritage from exploitation
Promote utilisation of cultural resources for Maori development under conditions
Develop informed consent and benefit-sharing procedures
Aroha Mead, August 2003
Today’s Situation
Maori are not currently the primary beneficiaries of our cultural assets
Many Maori cultural resources are already in exclusive non-Maori ownership
Maori cultural resources are in an increasingly high commercial demand locally, regionally and globally
Aroha Mead, August 2003
Times are changing
Not just for Maori but also for: Conduct of research Application & enforcement of
intellectual property Informed by global developments Develop responses that reflect our
own values and priorities
Aroha Mead, August 2003
Available Options
1. Status Quo 2. Strengthen existing laws & policy 3. Exempt Maori & develop a
comprehensive Maori-specific mechanism
4. Sui generis incl. Maori-specific 5. Sui generis pluralism approach
Aroha Mead, August 2003
1. Status Quo
Exclusive ownership
Applicant assertion Finite time period Innovation Commercial
Application
Communal ownership
Customary resource
Inter-generational Definition is
stretched Customary use
Aroha Mead, August 2003
Status Quo – Breeds Abuse
Four recent ip Court Cases John Moore vs US ownership of his own
body parts Monsanto vs Schmeiser [Canada] GMO
seeds found on Schmeiser’s property Madey v Duke University 2003
experiments not Patent exempt India vs US at the WTO Tumeric
Aroha Mead, August 2003
United States Patent 5,397,696 March 14, 1995
Papua New Guinea human T-lymphotropic virus
Abstract
The present invention relates to a human T-cell line (PNG-1) persistently infected with a Papua New Guinea (PNG) HTLV-I variant and to the infecting virus (PNG-1 variant). The establishment of this cell line, the first of its kind from an individual from Papua New Guinea, makes possible the screening of Melanesian populations using a local virus strain.
Assignee: The United States of America as represented by the Department of Health (Washington, DC)
Aroha Mead, August 2003
Gene Patents – US
0
1000
2000
3000
4000
5000
1981-85 1986-90 1991-95 1996-2001
Aroha Mead, August 2003
The Harvard oncomouse
Harvard University's attempts to patent a genetically altered mouse, known as the oncomouse, failed on December 5 2002 when the Court ruled in the case of Harvard College v Canada (Commissioner of Patents). In a five-to-four split, the Court decided that the transgenic mammal did not fit the Patent Act's definition of "composition of matter". The Court said that provisions in the Act do not allow for the protection of inventions using higher forms of life.
Aroha Mead, August 2003
THE INDIGENOUS™ STORY.
The Indigenous Purifying Collection draws inspiration from the ancient healing traditions of Native North Americans. Key ingredients are sustainably harvested in partnership with Native Peoples. Indigenous sales help support Native Groups who work to preserve Native culture, land and economic opportunity.
Sales from the Indigenous Purifying Collection help support the following Indigenous projects.
Aroha Mead, August 2003
2. Strengthen existing laws & policies Need to agree to scope of amendment, Prohibitive Time frame – NZ Trademarks Slow down but not stop misappropriation Can’t solve the remaining outstanding
issues Not enough and no leadership
Aroha Mead, August 2003
3. Exempt Maori & develop a comprehensive Maori-specific mechanism
Ethnic-specific that could limit Maori interests [new materials? Partnerships?]
Rely solely on customary law Wouldn’t ‘catch’ misappropriation
through current ipr Global coverage - WTO
Aroha Mead, August 2003
26.4.3 26.4.12 5.5.20
Aroha Mead, August 2003
4. Strengthen ipr PLUS develop sui generis Maori specific mechanisms
Toi Iho: Maori Trademark PLUS Trademarks Act
More acceptance of artistic creations Little acceptance of matauranga Maori and
natural resource-based property rights - WAI262
Can we achieve this for traditional knowledge?
Aroha Mead, August 2003
Indigenous Trademarks
Aroha Mead, August 2003
Australian Trademark 96440 Lodged 11 March 2003: Owner John
Allen Warren, Odona Blackledge Services for providing food and
drink; temporary accommodation
Aroha Mead, August 2003
5. Adopt a pluralism approach to sui generis
Accommodate several layers of legal authority; Customary law Common law
Intellectual property – current Maori specific Toi Iho Treaty of Waitangi Settlements Sui generis
Aroha Mead, August 2003
The Case for Sui Generis
Existing common law is insufficient Strengthening existing ip laws is critical
but should not be the only action taken Requires a sui generis pluralism approach Takes the issue beyond ip common law to
other laws, ‘traditional resource rights’ [Posey]
should also be Maori cipr-specific laws Customary law should have a role